Monday, 30 January 2017

There is a new minister for Intellectual Property in the UK, Jo Johnson. The previous minister, Baroness Neville Rolfe, made some promising statements about the UK's intentions to ratify the agreement on a unified patent court (UPC). She said on the one hand that the UK government is proceeding with preparations to ratify the Unified Patent Court Agreement, but on the other hand that "(...) the decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU".New minister Jo Johnson has confirmed these sentiments and strikes perhaps a slightly more positive note. In a a House of Commons Science and Technology Committee
session on 11-Jan-2017, he said "We have taken a decision to proceed with preparations to ratify the UPC Agreement. We believe it is important that we participate in this framework. It has value to UK inventors and businesses and we want to be there at its creation.” He declined to answer how the Brexit might influence this decision though: “These are
questions that will form part of the greater discussion of the Brexit
negotiations.” (Quotes copied from IP Pro Patents.)
About a week later, Mr. Johnson submitted an explanatory memorandum to Parliament. The document is an interesting read and stresses the benefits of the unitary patent system. One section to note (section 3.) is the following:

The UPCA establishes a specialised, non-EU patent court under international law with jurisdiction for disputes relating to European patents in 25 European countries. The Agreement is between 25 EU countries (not Spain, Croatia or Poland), the EU is not a signatory, and establishes a court common to the 25 participating countries as an international Organisation with legal personality in each. The UPC is part of the judicial systems of the participating countries in so far as it has jurisdiction over patents valid in their territories. However, the UPC forms a separate jurisdiction to the national court systems and it will not be part of the UK Court system.

This is true, as far as it goes. The unified patent court indeed is not an EU institution. However, it is also the case that the unified patent agreement repeatedly refers to EU law and the EU court of justice. If and how the UK can stay in the UPC after a Brexit is a current debate, and perhaps these are the questions that are part of the greater discussion of the Brexit negotiations that Mr. Johnson ment.